Delhi High Court
Bal Bharati Public School vs Directorate Of Education on 4 February, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14th January, 2019
Pronounced on: 4th February, 2019
+ W.P.(C) 7902/2018 & CM No.30296/2018
BAL BHARATI PUBLIC SCHOOL ..... Petitioner
Through: Mr. Amit Sibal, Sr. Adv.with
Mr. Kamal Gupta and Ms.
Pragya Agrawal, Advs.
versus
DIRECTORATE OF EDUCATION ..... Respondent
Through: Mr. Ramesh Singh, SC-
GNCTD with Mr. Chirayu Jain and Ms.
Nikita Goyal, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
1. The petitioner is a private unaided recognised senior secondary
school, which was granted permanent recognition, by the Directorate
of Education (hereinafter referred to as the "DOE"), in 1973. The
lease deeds, whereby land was allotted, by the Land and Development
Office (L&DO) for construction of the petitioner's school, issued in
1955, 1963, 1965, 1974 and 1975 did not contain any stipulation to the
effect that, before or after increasing its tuition fee, the school was
required to take approval, for the said increase, from the DOE.
Section 17 of the Delhi School Education Act, 1973 (hereinafter
referred to as the "DSE Act"), which governs charging of fees by
schools stipulates, in sub-section (iii), inter alia, that such schools are
required to file, with the DOE, a full statement of the fees to be levied
by the school during the ensuing academic session and are proscribed
from charging any fee in excess thereof, during the ensuing academic
session without proper approval of the DOE. For ready reference,
Section 17 of the DSE Act may be reproduced, in extenso, thus :
"17. Fees and other charges--
(1) No aided school shall levy any fee or collect any
other charge or receive any other payment except those
specified by the Director.
(2) Every aided school having different rates of fees or
other charges or different funds shall obtain prior
approval of the prescribed authority before levying such
fees or collecting such charges or creating such funds.
(3) The manager of every recognised school shall,
before the commencement of each academic session, file
with the Director a full statement of the fees to be levied
by such school during the ensuing academic session, and
except with the prior approval of the Director, no such
school shall charge, during that academic session, any fee
in excess of the fee specified by its manager in the said
statement."
2. I may note, here, that it is not disputed, even by learned counsel
for the respondents, that prior approval of the DOE was not required,
before the petitioner took a decision regarding the fees to be charged
by it for the next academic session. Such fees were to be decided, as
per the DSE Act, by the Managing Committee of the School, which
consisted, inter alia, nominees of the DOE as well as nominees of the
Advisory Board of the School. It has also been averred, in the writ
petition, that the school has been functioning for over 45 years and
that no prior approval, for the fees charged by it, for providing tuition
to its students, was ever sought by the DOE.
3. Vide a communication dated 29th March, 2017, addressed to the
DOE, and issued in compliance with Section 17(3) of the DSE Act,
the school intimated the fee structure, as approved by its Managing
Committee for the ensuing academic session i.e. for the academic
session 2017-2018. The said communication reads as under:
"Bal Bharati Public School
Ref:108/DOE/BB/2017 March 29, 2017
The Directorate of Education
National Capital Territory of Delhi
Old Secretariat, Delhi.
Dear Sir,
I am pleased to send you the following fee structure as
approved by the Managing Committee of the school for the
academic session 2017-2018 commencing from 1st April, 2017,
in accordance with the proviso of Chapter 6, Section 17(3) of
the Delhi Education Act and Rules 1973.
Particulars Pre- Pre- Middle Secondary Sr.Sec. Sr. Sec.
School Primary to (VI-VIII) (IX-X) (XI-XII) (XI-
Class V Arts/ XII)
Commerce Science
fee*
Fee*
Money*
Tuition Fee 4620 4005 4530 4730 4730 4730
(pm)
(pm)
Fee (pm)
(pm)
(pm)
*Only at the time of admission
Note
• No change in Admission Fee/Registration
Fee/Caution Money is as per direction of Department of
Education.
• Development Fee is 15% of prerevised Tuition
Fee.
• Smart Class Programme fee is to be charged at the
rate of Rs. 120/- per month (same as previous year) for
classes I to XII.
• Annual charges will be charged at the rate of Rs.
6000/-.
Fee structure was approved by the Managing
Committee in its meeting on 27th March 2017. Minutes
of the Managing Committee meeting held on 27 March
2017, attended by Secretary, PTA, Teacher
Representative and other members are enclosed.
With kind regards,
Yours sincerely,
Sd/-
L. V. Sehgal
Principal
Cc: Addl. Director of Education, Act Branch
Cc: Dy. Director of Education, Dist. Centre
Cc: DDE, Zone 28, Plot No.5, Jhandewalan"
4. On 6th January, 2017, a circular was issued by the DOE,
prohibiting unaided private schools from holding any meeting of the
Managing Committee for increasing fees, for the 2017-18 academic
session, till a decision thereon was taken by the competent authority.
The said circular read as under:
"Attention of Manager/HoS, of all Private unaided Recognized
Schools is invited towards Circular No.30- 3(17)/(12)/VII Pay
Comm./Coord/2016/11006-11016 dated 19.08.2016 vide which
Directorate of Education, Government of NCT of Delhi adopted
the Central Civil Services (Revised Pay) Rules, 2016 and
implemented 7th Pay Commission Recommendations in respect
of its employees. However, since a decision regarding manner
of implementation of 7th Pay Commission Recommendations in
Private Unaided Recognized Schools, is yet to be announced by
the Competent Authority, therefore, the Manager/HoS of all
Private Unaided Recognized Schools are hereby directed not to
hold any meeting of Managing Committee regarding increase in
fee hike for the session 2017-18 till a decision is taken in this
regard at the level of the Competent Authority and requisite
guidelines are issued by the department."
5. This was followed by a clarificatory circular, also issued by the
DOE on 27th March, 2017, which reads thus:
"In continuation of the circular vide DE.15/PSB/Misc./2016/29
dated 06.01.2017, vide which the Managers/HoS, of all the
Private Unaided Recognised Schools were directed not to hold
any meeting of Managing Committee regarding increase in fee
for the session 2017-18 till a decision is conveyed regarding
modalities of implementation of 7th Pay Commission
Recommendations in respect of its employees.
Various requests for clarifications are being received in
this regard, hence it is clarified that the circular dated
06.01.2017, applies only with respect to 7 th Pay Commission
benefits, detailed guidelines for which will be issued after
decision of competent authority. In the mean-time, managing
committee may take decision in normal course, as per
established procedure. However, no fee increase with respect to
7th Pay Commission may be implemented, as modalities are yet
to be conveyed.
It is clarified here that the schools running on the
DDA/Govt Land owing agencies with a condition of seeking
prior sanction of Director (Education) for fee hike, will not
increase any fee without prior sanction of the
Director(Education).
This issues with the prior approval of the competent
authority."
5. The aforementioned circular dated 6th January, 2017, of the
DOE, was challenged, by an organisation styling itself the "Action
Committee for Unaided Recognised Private Schools", before this
Court by way of W.P.(C) 2637/2017. This writ petition was decided,
by a learned Single Judge of this Court, vide judgment dated 30th
March, 2017. The concluding paragraphs of the said decision, which
are self-explanatory in nature may be reproduced thus :
"Prima facie this Court is of the view that the unfettered right of
the private unaided schools to notify the fee structure after
taking into account the major expenditure to be incurred in a
year before commencement of the academic session cannot be
abridged or whittled down only on the ground that a decision
with regard to a major head of expenditure, namely, the
increase in salary due to Seventh Pay Commission shall be
worked out by the Directorate of Education in a few days after
commencement of the academic session.
Also to presume that all private unaided recognised
schools are making profits would not be correct as this Court is
seized of number of contempt petitions against private unaided
schools who have not paid the increase in fees of teachers and
staff under the Sixth Pay Commission till date.
Keeping in view the importance and relevance of 31st
March, 2017 in Section 17(3) of the Act and to balance the
equities, this Court directs that in the event the Seventh Pay
Commission is directed to be implemented in private unaided
schools by the respondent, then the petitioner-schools would
have an option within two weeks from the date of
implementation of the Seventh Pay Commission to intimate the
revised fee schedule and the same shall be taken as having been
filed on 30th March, 2017.
It is clarified that this order has been passed without
prejudice to the rights and contentions of either of the parties."
6. Guidelines for implementation of the 7th Central Pay
Commission (hereinafter referred to as the "7th CPC") by private
unaided schools were issued, by the DOE, vide Office Order dated 17th
October, 2017; however, vide subsequent order dated 13th April, 2018,
the DOE withdrew the said Office Order dated 17th October, 2017 in
respect of private schools functioning on land allotted by government
land owning agencies, clarifying that such schools were required to
seek prior sanction of the DOE before increasing their fee. Inasmuch
as the petitioner was not functioning on land allotted by any
government land owning agency, it continued to be covered by the
earlier DOE order dated 17th October, 2017.
7. Vide a communication dated 30th November, 2017, the
petitioner communicated, to the Deputy Director of Education
(hereinafter referred to as the "DDE") in the office of the DOE itself,
its revised fee with effect from 1st December, 2017, consequent upon
the recommendations of the 7th CPC, and the requirement, thereunder,
of payment, by the petitioner, to the teachers and other staff employed
by it, in terms thereof. The said letter reads as under:
"No. 135/BB/2017 November 30, 2017
The DD (Zone -28), Directorate of Education
Jhandewalan, New Delhi- 110005
Sub- Revised fee w.e.f. 01.12.2017 on account of
Implementation of 7th CPC
Dear Sir,
Reference DOE Order No. DE.
15(318)/PSB/2016/1986 dated 17.10.2017. The
Managing Committee in its meeting held on 21.11.2017
considered the proposal for increase in fee on account of
implementation of 7th CPC as per direction issued by
Directorate of Education vide order dated 17.10.2017.
The following revised fee structure was unanimously
passed:-
Particula Pre-School Pre-Primary Middle Secondary Sr. Sec. Sr. Sec.
rs to Class V (VI - VIII) (IX-X) (XI-XII) (XI-XII)
Arts/ Science
Commerce
Pre- Revis Pre- Revis Pre- Revis Pre- Revis Pre- Revis Pre- Revis
Revis ed Revis ed Revis ed Revis ed Revis ed Revis ed
ed ed ed ed ed ed
Registrat 25 25 25 25 25 25 25 25 25 25 25 25
ion fee
Admissio 200 200 200 200 200 200 200 200 200 200 200 200
n Fee*
Caution 500 500 500 500 500 500 500 500 500 500 500 500
Money*
Tuition 4620 5405 4005 4790 4530 5315 4730 5515 4730 5515 4730 5515
Fee (pm)
Activity 210 210 210 210 210 210 210 210 210 210 210 210
Fee (pm)
Develop 695 695 600 600 680 680 710 710 710 710 710 710
ment Fee
(pm)
Science --- --- --- --- --- --- --- --- --- --- 75 75
Fee (pm)
Compute --- --- --- --- --- --- --- --- --- --- 75 75
r Fee
(pm)
*Only at the time of admission
Note
No change in Admission Fee/Registration Fee/Caution
Money is as per direction of Department of Education
Development Fee is 15% of prerevised Tuition Fee
Smart Class Programme fee is to be charged at the rate of
Rs. 120/- per month (same as previous year) for classes I
to XII
Annual charges will be charged at the rate of Rs. 6000/-.
Minutes of the Managing Committee meeting dated
21.11.2017 attended by DOE Nominee & Advisory
Board Nominee along with other members is enclosed.
Also enclosed are the following documents:-
(i) Full statement of Fee under Section 17(3) of DSEA
1973 as per proforma circulated vide circular No.
F/DE/PSB/2017/6604 dated 03.07.2017
(ii) Copy of letter dated 29th March, 2017 regarding
fee structure for session 2017-18 duly submitted to your
office.
Kindly acknowledge receipt.
Thanking you
Yours sincerely Cc: The Deputy Director of Education,
Directorate of Education, District
Central, Sd/-Jhandewalan, Karol
Bagh, New Delhi-110005
Sd/-
L. V. Sehgal
Principal
Encl. as above."
8. This provoked an e-mail, dated 28th April, 2018 from the DOE
castigating the school for having increased its fees without the
previous approval of the DOE. The communication also required the
petitioner to submit certain documents. For ready reference, the said
e-mail, dated 28th April, 2018, from the DOE to the petitioner, may be
reproduced thus :
"To
The Manager/HOS,
Bal Bharti Public School,
Ganga Ram Hospital Road, New Delhi.
With reference to the correspondence resting in your
office, whereby you have informed that the fee has been
increased by your school. It would be needless to mention
that the fee has been increased by you without previous
approval of Director of Education.
In this connection you are required to submit the
following documents within a period of 3 days -
i. Copy of Fee Structure for 2017-18 alongwith
statement of section 17(3) of DSEA 1973 with a copy of
Minutes of Meeting of PTA/SMC having
consent/disagreement of Director of Education's
Nominees.
ii. Details of fee increased during 2017-18 on account
th
of 7 Pay Commission alongwith statement of accounts
in its support and a copy of Minutes of Meeting of PTA/
SMC having consent/disagreement of Director of
Education's Nominees.
iii. Copy of Fee Structure for 2018-19 alongwith
statement of section 17(3) of DSEA 1973 with a copy of
Minutes of Meeting of PTA/SMC having
consent/disagreement of Director of Education's
Nominees
iv. Details of Fee, if any, increased during 2018-19
without approval of Director of Education.
v. A photocopy of allotment/lease deed of land
allotted to your school.
The aforesaid information must reach this office
within the stipulated period of time of 03 days.
DDE ZONE-28"
9. In deference to the request contained in the afore-extracted e-
mail, the petitioner provided the documents sought therein, under
cover of its letters dated 28th April, 2018 and 5th May, 2018.
10. On 7th May, 2018, the DDE addressed another email to the
petitioner which reads thus:
"Mail ID : 705201800530
Date : 07/05/2018 03:46 pm
From: 5005008 Zone28
To: 2128122 BAL BHARTI PUBLIC SCHOOL
Subject: Requirement of documents for evaluation of
fee increase proposal of the Bal Bharti
Public School, Sir Ganga Hospital Marg for
academic session 2017-18.
Subject Topic: Other
OFFICE OF THE DEPUTY DIRECTOR OF ZONE 28,
DISTRICT CENTRAL PLOT NO.5, JHANDEWALAN,
NEW DELHI
No. DDE/Z-28/2018/672
Dated 07/05/2018
To,
The Principal/Manager,
Bal Bharti Public School (ID 2128122),
Pusa Road,
New Delhi
Sub: Requirement of documents for evaluation of Fee
increase proposal of the Bal Bharati Public School, Sir
Ganga Hospital Marg for academic session 2017-18
Madam/Sir,
This is with reference to evaluation of fee hike
proposal as submitted by the school for academic session
2017-18. On evaluation of Fee hike proposal of the
school, it has been felt to obtain information/documents
and clarification from the school.
The List of documents required for examination of fee
proposal of the school are as under:
a) Original fee receipt issued during the financial year
2014-15, 2015-16 and 2016-17 for each class (atleast 2
students for all 12 months).
b) Please provide the copy of Audited financial
statement along with all schedules for the year 2014-15,
2015-16 both unit wise and consolidated statement.
c) Copy of fee collection registrar for the financial
year 2014-15, 2015-16 and 2016-17 for each class.
d) Details of Free ship students during the financial
year 2014-15, 2015-16 for each class.
e) Staff statement as on 01.04.2017 along with the
designation of teachers.
f) Copy of returns filed under rule 180 of DSER 1973
for the financial year 2014-15, 2015-16 and 2016-17.
g) Item wise details/break up/justification for the
proposed increase (or decrease) for all revenue
expenditures and capital expenditures as per budgeted
statement for the session 2017-18 against actual
expenditures incurred during 2016-17 along with relevant
documents to substantiate its claim.
h) Copy of FDR's certificate maintained by the
school as on 31.3.2017.
i) Clarify the date of implementation of 7th CPC.
Also, provide salary payment register (or Pay bill
register) for the month of November 2016 and December
2016 and clarify the mode and process/procedure of
payment of salary.
j) Copy of TDS return and PF for the financial year
2016-17.
k) Statement of surplus of deficit in respect of each
Earmarked levies namely Activity funds, Activity Fees
for Orientation, skill development, Computer fees,
science fees, Smart Class programme Fee, Transport Fee
showing collection of fee under these heads and
expenditure incurred under that.
l) Utilization of development fee for the financial
year 2014-15, 2015-16 and 2016-17.
m) Details of secured and unsecured loan, if any, taken
by the school during the year 2014-15, 2015-16, 2016-17
are required (nature of Loan, source of repayment,
purpose of taking loan etc. also needs to be mentioned)
n) Details of Inter Unit transaction and Intra Units
transactions, including nature of transactions during the
financial year 2014-15, 2015-16, 2016-17.
o) Whether provision for gratuity and leave
encashment are made on actuarial basis and if yes, the
coy of the report of the actuary needs to be submitted.
p) Details of Caution money charged/refunded, if any,
during the year 2014-15, 2015-16 and 2016-17 together
with the sample slip for caution money refund for 2
students per class.
q) Whether school has deposited the caution money in
a separate account in schedule bank, if yes, details of
bank and account together with interest earned to be
submitted by the school.
r) Whether the school has filed statement of fee by
31st March for the years 2014-15, 2015-16 and 2016-17
before the commencement of academic session under
section 17 (3) of the Act? If yes, please provide the
details.
s) Whether school is collecting donations in any
name from the students at the time of admission? If yes,
please provide the details.
t) Detailed calculation of late fees collected during
the year 2014-15, 2015-16 and 2016-17.
u) Reconciliation statement of fee as per Financial
statements with Fee structure and student strength (Fee as
per Financial statement = No. of fee paying student* Fee
per student per month * 12). This calculation should be
done for each head of fee charged by the school for the
year 2014-15, 2015-16 and 2016-17 and differences, if
any, therein should be properly explained.
The school is hereby directed to submit the above
mentioned documents/information at the earliest.
In this connection, you are hereby directed not to increase
the fee until the scrutiny of said documents/information is
done by the Department of Education."
11. This was followed by a letter, from the DOE to the petitioner on
11th May, 2018 requiring the petitioner to submit the documents
enlisted in its earlier email dated 7th May, 2018, within three days, and
reiterating the direction not to increase fees until the said documents
were scrutinised by the DOE. The said communication read thus :
"OFFICE OF THE DEPUTY DIRECTOR OF
EDUCATION
DISTT.CENTRAL/NEW DELHI, PLOT NO.5,
JHANDEWALAN, NEW DELHI
Phone No. 011-23514063
No.DE.51/DDE/PB/C&ND/2017-18/94
DATED: 11/05/2018
To
The Principal/Manager
Bal Bharati Public School (ID 2128122),
Pusa Road,
New Delhi
Sub.; Requirement of documents for evaluation of fee
increase proposal of Bal Bharti Public School, Sir Ganga
Hospital Marg for academic session 2017-18
Madam/Sir,
In continuation to DDE Zone- 28, letter bearing No. DDE
/Zone-28/2018 dated 07/5/2018 and subsequent reminder
dated 11/05/2018 (both emailed) it is observed that the
required documents for proper evaluation of fee increase
proposal in respect of Bal Bharti Public School for
academic session 2017-18 have not been submitted by the
school so far. In view of above, it is once again directed
to submit the following documents /records /information
within a period of 3 days:-
a) Original fee receipts issued during the financial year
2014-15, 2015-16 and 2016-17 for each class (at least 2
students for all 12 months)
b) Please provide the copy of Audited financial
statements along with all Schedules for the year 2014-
2015, 2015-2016 both Unit wise & Consolidated
statements
c): Copy of fee collection registers for the financial year
2014-15, 2015-16 and 2016-17
d) Details of Free ship students during the financial year
2014-15. 2015-16 for each class
e) Staff statement as on 01.04.2017 along with the
designation of teachers
f) Copy of returns filed under rule 180 of DSER, 1973 for
the financial year 2014-15, 2015-16 and 2016-17.
g) Item-wise details/breakup/justification for the
proposed increase (or decrease) for all revenue
expenditures and capital expenditures as per budgeted
statement for session 2017-18 against actual expenditure
incurred\during 2016-17 along with relevant documents
to substantiate its claim
h) Copy of FDRs certificate maintained by the school as
on 31.3.2017
i) Clarify the date of implementation of 7th CPC. Also,
provide salary payment register (or Pay bill register) for
the month of November 2016 and December 2016 and
clarify the mode and process/ procedure of payment of
salary
j) Copy of TDS return and PF return for the financial year
2016-17
k) Statement of surplus or deficit in respect of each
Earmarked levies namely Activity Fees, Activity Fees for
Orientation, Skill development. Computer Fees, Science
fee. Smart Class Programme Fee, Transport Fee, showing
collection of fee under these heads and expenditure
incurred against that
l) Utilisation of development fee for the financial year
2014-15, 2015-16 and 2016-17
m) Detail of secured/unsecured loan, if any, taken by the
school during the years 2014-15, 2015-16 2016-17 are
required (nature of loan source of repayment, purpose for
taking loan etc. also needs to be mentioned.)
n) Details of Inter-unit transactions and Intra-unit
transactions, including nature of transactions during the
financial year 2014-15, 2015-16, 2016-17
o) Whether provision for gratuity and leave encashment
are made on actual basis and if yes, the Copy of the
report of the actuary needs to be submitted
p) Details of caution money charged/refunded, if any,
during the year 2014-15, 2015-16 and 2016-17 together
with the sample slip for caution money refund for 2
student per class
q) Whether the school has deposited the caution money in
a separate account in schedule bank, if yes, details of
bank account together with interest earned is to be submit
by school
r) Whether the school has filed statement of fees by 31 st
March for the years 2014-2015, 2015-16 and 2016-17
before the commencement of the academic session under
section 17(3) of the Act? If yes, please provide the details
s) Whether school is collecting donation in any name
from the students at the time of admission? If yes, please
provide the details?
t) Detailed calculation of late fee collected during the
year 2014-15, 2015-16 and 2016-17
u) Reconciliation Statement of Fee as per Financial
Statements with Fee Structure & Student Strength (Fees
as per Financial Statements= No. of fee paying students*
Fee per student per month*12). This Calculation should
be done for each head of fee charged by the school for the
year 2014-15, 2015-16 and 2016-17 and differences, if
any, therein should be properly explained.
It is hereby reiterated and made clear that the
school shall not increase the fee until the scrutiny of said
documents/information is done by this office. The school
is further directed to inform the parents accordingly."
12. The petitioner responded, vide letter dated 15th May, 2018, to
the DOE, pointing out that all its earlier missives to the petitioner were
misconceived, as the petitioner had never sought either prior or ex-
post facto permission for increasing its fees for the academic session
2017-18, as Section 17 of the DSE Act did not require it to do so. It
was pointed out that the communications, by the petitioner, to the
DOE, regarding the hike of fees effected and proposed to be effected
by it, were only by way of compliance with the mandate of Section
17(3) of the Act.
13. The DDE responded to the petitioner, vide communication
dated 24th May, 2018, refuting the petitioner's submission that it was
entitled to increase its fees without permission of the DOE, on the
ground that the said contention was contrary to the judgment of the
Supreme Court in Modern School v. Union of India, (2004) 5 SCC
583, which, according to the DDE, conferred enhanced powers on the
DOE to regulate the fees charged by schools, and to examine, inter
alia, whether any particular school was increasing its fees without
utilising the reserves/surplus available with it, or without maintaining
its accounts properly. It was pointed out, in the said letter, that the
DDE had received a complaint, dated 18th May, 2018, alleging that the
petitioner was forcing parents to pay higher fees, despite the
aforementioned directions of the DOE. As such, the petitioner was
directed to furnish the documents, requisitioned by the email dated 7 th
May, 2018 (supra) within one day.
14. The petitioner sought some more time for furnishing the said
documents, and it is not in dispute that the documents were submitted
by the petitioner on 18th June, 2018.
15. On 30th June, 2018, the DDE addressed yet another email to the
petitioner fixing personal hearing, in the above respect, on 7 th July,
2018 in the following terms:
"To
The Manager/Principal
Bal Bharati School
Rajinder Nagar
New Delhi
Dear Sir,
You are directed to appear with your accounts personnel
for hearing on Monday i.e. July 02, 2018, at 11:00 A.M. in
Public School Branch Dte of Education, old Sectt. Delhi, with
additional documents/information as mentioned in the letter
attached herewith on the subject cited above.
DDE (C/ND)
Name of School: Bal Bharti Public School
Address: Sir Ganga Ram Hospital Marg
School ID: 2128122
I. It was requested vide letter dated May 24, 2018,
school was asked to provide item-wise
details/breakup/justification for the proposed increase (or
decrease) for all revenue expenditures and capital
expenditures as per budgeted statement for session 2017-
18 against actual expenditure incurred during 2016-17
along with relevant documents to substantiate its claim,
however, school has provided details of revenue
expenditure against school fund only. Hence, it is directed
that school should provide details of all revenue
expenditures and capital expenditures incurred during the
FY 2017-18 along with provision trail balance.
II. Copy of contract entered with vendor (if any) along
with invoice for the month of March, 2017 and March,
2018 in relation to below mentioned activities;
a. Transportation
b. Orientation programme
c. Skill development program
d. Smart class program
e. Housekeeping expenses
f. Security Expenses
g. Teachers training expenses
III. Details such as; number of student attended the activity,
fee per student, expenditure incurred in detailed format of
income holding events for the FY 2014-15, 2015-16 and 2016-
17,
a. Summer Camp
b. Educational Tour
c. Carnival
IV. Clarification is required from the school in respect of
treating "Development of Campus" under the head "Repair &
Maintenance". Ledger for the FY 2014-15, 2015-16 and 2016-
17 is required from the school. Below are the details.
a. FY 2014-15 - Rs. 51,94,070
b. FY 2015-16 - Rs. 56,06,210
c. FY 2016-17 - Rs. 81,74,188
V. Clarification is required in respect of professional charges
incurred during the FY 2014-15, 2015-16, 2016-17. Ledger for
the FY 2014-15, 2015-16 and 2016-17 is required from the
school. Below are the details;
a. FY 2014-15 - Rs. 20,51,770
b. FY 2015-16 - Rs. 18,51,519
c. FY 2016-17 - Rs. 31,53,450
VI. Clarification is required in respect of retainer ship fee
incurred during the FY 2014-15, 2015-16, 2016-17. Ledger for
the FY 2014-15, 2015-16 and 2016-17 is required from the
school. Below are the details;
a. FY 2014-15 - Rs. 68,22,547
b. FY 2015-16 - Rs. 64,13,662
c. FY 2016-17 - Rs. 32,61,842
VII. Clarification is required from the school for creation of
provision in the name of "Provision for PF and Interest
payable" of Rs. 4,63,56,050 out of school fund during the FY
2015-16.
VIII. The School has recoverable balance from inter units,
ledger of the below mentioned organization is required from the
school.
Name of Organization Financial Year Amount
BBPS - Bhopal 2016-17 23,06,474
(NEELBAD)
BBPS - Ludhiana 2016-17 25,00,000
BBPS - Manesar 2015-16 10,00,000
BBPS - Solan 2015-16 32,50,000
BBPS - Brij Vihar 2015-16 2,25,000
BBPS - Noida 2015-16 2,25,000
IX. School need to provide certified copy of bank statement
(i.e. certified by bank) for the FY 2016-17 for all the bank
accounts maintained.
X. Updated Fixed assets register as on March 31, 2018.
XI. Ledger for the below mentioned expenditure head;
XII. Ledger for building repair and maintenance is required
for the FY 2014-15, 2015-16 and 2016-17.
XIII. Ledger for the head of "Other Expenses" is required for
the FY 2014-15, 2015-16 and 2016-17.
a. Write off and provisions
b. Misc. Expenses
XIV. Ledger of "Development of Recording Studio", "Disaster
Management System" and "Swimming Pool" for the FY 2014-
15, 2015-16 and 2016-17 is required from the school, as school
has incurred significant addition to the above-mentioned head
during the last three year.
XV. Clarification is required from the school in respect of
depreciation treatment for the FY 2016-17
School is hereby directed to attend the hearing on July 02, 2018
i.e. by Monday with PE Team, Private School Branch,
Directorate of Education, Old Secretariat Delhi-110054
together with all the document mentioned above.
If required, the school may be called for further hearings for
clarifications and explanations.
From
PE Team
Private School Branch
Directorate of Education"
16. On receiving the above notice of hearing, from the DoE, the
petitioner responded, thus, to the DoE, on 4th July, 2018:
"No. 72/BB/2018-19 July 4th, 2018
The Dy. Director of Education
District Central/New Delhi
Plot No.5, Jhandewalan
New Delhi-110005
Sub: Reply to your e-mail dated 30.6.2018
Dear Madam,
This bears reference to your e-mail dated 30.6.2018 regarding
provision of certain documents and clarification. This further
bears reference to the earlier correspondence made by your
good office with our school, particularly, to your e-mails dated
28.4.2018, 7.5.2018, 11.5.2018 & 24.5.2018.
At the outset, I may most humbly submit that the school has
been timely responding to all your e-mails and has also been
providing all the necessary documents required/requisitioned by
your goodself from the school.
Having stated the above, the school is constrained to point out
to your goodself that it is completely unaware and is in fact, in
dark as to the nature of the exercise which is being carried on by
the Department.
I may now, on behalf of the school, at the outset, once again
reiterate and reappraise you of the clear, undisputed and
admitted factual and legal position that our school does not have
any condition whatsoever, either in the allotment letter or in the
lease deed, requiring the school to take any approval
whatsoever, much less a prior approval, of the DoE before
fixing or enhancing the school fee. However, the school is duty-
bound under the provisions of the DSEAR, 1973, to intimate to
the department, its fee hike, as decided by a statutorily
constituted Managing Committee of the school (which consists
of a total of 4 nominees of the department as also of the
Advisory Board), at the start of an academic session. The school
has been, without fail, complying with the aforesaid
requirement of law by timely intimating its fee hike to the
department before the start of every academic year.
I may also draw your kind attention to the contents of the Order
bearing No. DE.15(318)/PSB/2016/19786 dated 17.10.2017,
issued by the Worthy Director of Education herself, whereunder
our school is covered and dealt with under para 3 thereof,
whereunder fee hike is permitted to be made for the year 2017-
18. I may also point out that the subsequent Order bearing No.
DE.15(318)/PSB/2016/23840-23847 dated 13.4.2018,
withdraws the earlier Order dated 17.10.2017, only in respect of
schools that have a condition of seeking prior sanction of
Director of Education before increasing their fee. Thus, clearly,
the Order dated 17.10.2017 continues to apply and be in force
for a school like ours.
In pursuance to the Order dated 17.10.2017, the school, after
fully complying with the requirements and pre-conditions
mentioned therein had submitted its full "Statement of Fee"
under Section 17(3) as per the proforma mentioned in the
Directorate's Order dated 3.7.2017. Needless to state the said
"Statement of Fee" was accompanied by all the documents as
are required to be filed along with the proforma.
In addition thereto, the school had also submitted all documents
and information as were required to be submitted by the school,
to the department in pursuance to the Order dated 17.10.2017.
No shortcoming had on account thereto, had ever been pointed
out by the school to the department.
It is also pertinent and not out of place to mention that in
reference to Para 3(I)(g) of the Order dated 17.10.2017, the
"Statement of Fee" submitted under Section 17(3) is required to
be analysed by the Dy. Director of Education (District), only in
case where the DE nominee has passed a dissent note. As a
matter of fact, in our case, all the nominees of the DE have
approved the proposal for hike in fee for the year 2017-18. As
stated above, in pursuance thereto, the "Statement of Fee" has
already been filed with the department.
I may, at this stage, also point out that the Order dated 3.7.2017,
specifying the proforma for submitting the full "Statement of
Fee" under Section 17 (3), as the date of the Order reveals, was
issued many months after the school had already submitted its
"Statement of Fee" way back on 27.3.2017. The Order dated
3.7.2017 itself clarifies that the schools that have already
submitted their "Statement of Fee" for the current academic
year viz. 2017-18, need not submit the same again. However, in
pursuance to the order dated 17.10.2017, permitting the school
to raise their fee, for the purpose of implementation of 7th CPC,
over and above the fee structure already submitted to you, the
school, in compliance with para 3 (I) (f) had again submitted the
full "Statement of Fee" in the proforma as circulated by the
department vide its Order dated 3.7.2017.
As stated hereinabove, since the school not having any
condition for seeking prior approval before fixing or enhancing
its fee, it, at no point of time, made any "proposal for hike in
fee" for the approval of the department, inasmuch as there was
no such requirement under the law, as admitted by the
department itself. Since there is no "proposal for hike in fee"
submitted by the school [except for the "Statement of Fee"
submitted under Section 17 (3)], it is not understood as to which
proposal for hike in fee for the academic year 2017-18 is sought
to be scrutinized by the department. I may also point out that the
fee for academic year 2017-18 already stands charged and also
duly utilized and spent as per the budgetary allocations. The
academic year 2017-18 is long over and the "Statement of Fee"
submitted by the school in March, 2017, i.e. more than one year
and four months ago, cannot now be sought to be undone,
especially when the said statement was prepared and intimated
in accordance with the provisions of the DSEAR.
It is also perplexing and confusing to note the contents of the
communications dated 7.5.2018, 11.5.2018 & 24.5.2018,
wherein our school has been required not to increase the fee for
the year 2017-18, in clear contradiction to the Order dated
17.10.2017, issued by the DoE, as stated above, the said Order
dated 17.10.2017 explicitly permits the school like ours to
increase its fee, after following the procedure laid down therein.
The school having fully complied with the Order dated
17.10.2017, issued by the DoE itself, the fee fixed by the school
cannot be interdicted or interfered with, in any manner.
The school wishes to submit that the school has duly complied
with all the provisions contained in the Order dated 17.10.2017
and has fixed its fee in strict compliance thereof. Insofar as the
year 2018-19 is concerned, again in compliance with the
statutory, mandate the school has already filed its full
"Statement of Fee" with the department in March, 2018,
whereby the school has made an increase of only 3% though as
per the accepted norms and normal practice as also keeping in
mind the bi-annual increase in D.A. and inflationary pressures,
the school was entitled to raise its fee by 10 %.
In the facts and circumstances, narrated hereinabove, your
goodself is kindly requested, in the first instance to look into the
afore-mentioned factual and legal aspects and be pleased to
guide the school accordingly."
17. This was followed by another letter, dated 11th July, 2018, from
the petitioner to the DOE, which was by way of continuation to the
communication dated 4th July, 2018 supra, and read thus:
"79/BB/2018-19
The Dy. Director of Education
District Central/New Delhi
Plot No. 5, Jhandewalan, Zone 28
Karol Bagh
New Delhi-110005
Sub: Reference to your email dated 30.06.2018 and our reply
dated 06.07.2018 vide reference No. 72/BB/2018-19
Dear Madam,
In continuation of our letter dated 06.07.2018 explaining the
position regarding your email dated 30.06.2018. We bring to
your attention the following most important points for your
consideration:-
For the session 2018-19, the duly constituted Statutory
Managing Committee of the school including nominees of the
Department of Education as well as of the Advisory Board
decided to increase the fee by only 3%, though as per accepted
norms and normal practice, the school is entitled to increase its
fee by 10%.
For the arrear collection with regard to the
implementation of 7th Central Pay Commission (CPC) for
which the school followed strictly the procedure laid down in
DOE's order dated 17.10.2017, the school divided the entire
collection of arrears into easy instalments as per the following
schedule:-
Clas Amou First Date of Second Date of Third Date of
s nt of Instalme Payme Installme Payme Installme Payme
fee nt nt nt nt nt nt
arrear
PS 4085 4085 20.12.1 -- -- -- --
PP 10210 5105 20.12.1 2553 22.05.1 2552 22.08.1
I to 11740 5870 20.12.1 2935 22.05.1 2935 22.08.1
VI 11740 5870 20.12.1 2935 22.05.1 2935 22.08.1
VIII
IX 11740 5870 20.12.1 2935 22.05.1 2935 22.08.1
XI
X& 11740 11470 20.12.1 -- -- -- --
The above schedule was intimated to the parents well in
advance and the parents by & large accepted and adhered to this
schedule.
Inspite of the above, if any parent has approached the
school authorities for further relaxation of time for payment of
arrears, the same has been allowed to avoid any hardship to
them.
In view of the above facts and circumstances, you will
appreciate that the school has been considerate and has taken all
steps required to avoid any hardship or burden on the parents
and has also followed the orders of the Directorate of Education
and the procedure laid down by them for implementation of
7CPC.
I hope you will take a considered decision in the matter &
guide us accordingly.
Thanking you & with regards
Yours sincerely
Sd/-
L.V. Sehgal
Principal"
18. The writ petition avers that, almost as a rebound to the above
communication, dated 11th July, 2018, addressed to it by the
petitioner, the DoE issued the impugned order, dated 9 th July, 2018,
which issues the following directions:
"9. NOW, THEREFORE the management of the said school is
hereby directed under section 24(3) of DSEAR 1973 to comply
with the following directions:-
(i) Not to increase any fee in pursuance to the proposals
submitted by school on any account including implementation
of 7th CPC for the academic session 2017-18 and if the fee is
already increased and charged for the academic session 2017-
18, the same shall be refunded to the parents or adjusted in the
fee of subsequent months.
(ii) To communicate the parents through its website, notice
board and circular about rejection of fee increase proposal of
the school by the Directorate of Education.
(iii) To ensure that the salaries and allowances shall come out
from the fees whereas capital expenditure will be a charge on
the savings in accordance with the principles laid down by
Hon'ble Supreme Court of Delhi in its Judgement of Modern
School vs. Union of India. Therefore, school not to include
capital expenditure as a component of fee structure to be
submitted by the school under Section 17(3) of DSEA, 1973.
(iv) To utilise the fee collected from students in accordance
with the provisions of Rule 177 of the DSER, 1973 and orders
and directions issued by this Directorate from time to time.
(v) To remove all the financial and other
irregularities/violations as listed above and submit the
compliance report within 30 days to this office.
(vi) In case of submission of any proposal for increase in fee
for the next academic session, the compliance of the above
listed financial and other irregularities/violations will also be
attached.
(vii) Non-compliance of the order shall be viewed seriously.
(PRATIBHA SAPRA)
DEPUTY DIRECTOR OF EDUCATION
DISTRICT CENTRAL/NEW DELHI
To,
The Manager/HOS,
Bal Bharti Public School,
Ganga Ram Hospital Marg,
New Delhi.
NO.F.DDE/C&ND/Z-28/2017-18/ Dated: 09/07/2018
Copy to:
1. PS to Secretary (Education), Directorate of Education, GNCT
of Delhi.
2. PS to Director (Education), Directorate of Education, GNCT
of Delhi.
3. PA to Addl. Director of Education (Private School Branch)
Directorate of i5ducation, GNCT of Delhi.
4. DDE (FSB), Old Secretariat, Delhi.
5. DDE Zone-28
6. Guard File
(PRATIBHA SAPRA)
DEPUTY DIRECTOR OF EDUCATION
DISTRICT CENTRAL/NEW DELHI"
19. Aggrieved by the above extracted communication dated 9th July,
2018, the present writ petition seeks issuance of a writ of certiorari,
quashing the said order.
20. Arguments have been advanced, on behalf of the petitioner, by
Mr. Amit Sibal, learned Senior Counsel and, on behalf of the DOE, by
Mr. Ramesh Singh, learned Additional Standing Counsel.
21. Mr. Amit Sibal submits that the impugned order has been
passed in clear violation of the principles of natural justice. He draws
my attention to the fact that e-mail dated 30th June, 2018 (supra),
addressed to the petitioner, by the DOE, which was issued on a
Saturday, fixed personal hearing two days immediately thereafter, on
Monday, i.e. 2nd July, 2018. He submits that this was clearly
unreasonable, especially given the fact that the intervening day was
Sunday. Mr. Sibal draws my attention, in this context, to the fact that
other schools, who had not turned up for hearing on the first occasion,
had been given a second chance and complains that his client was
unjustly discriminated against, in that regard. He further draws my
attention to the fact that, though the petitioner responded, to the
abovementioned notice of hearing dated 30th June, 2018, vide emails
dated 4th July, 2018 and 11th July, 2018, there was no reply, by the
DOE thereto. Mr. Sibal submits that it was thus, without even being
afforded an opportunity of personal hearing, that his client was asked
to refund a colossal amount of ₹ 8.23 crores. He draws my attention,
in this regard, to the audited balance sheet of the petitioner which,
according to him, indicated that, even after increasing its fee by ₹ 8.23
crores, the petitioner was running in a deficit of ₹ 3.43 crores. If the
said increase of fee was not allowed, therefore, Mr. Sibal would
submit, the petitioner-school would suffer a deficit of approximately
₹ 11.6 crores, which would make it nearly impossible for the
petitioner to function. Mr. Sibal also questions, on merits, the tabular
statement, contained in para 7(v) of the impugned order and the
conclusion therein, that the petitioner had a net surplus of ₹
11,08,35,824/- and submits that he has demonstrated, by way of a
comparative table annexed as Annexure P-18 to the writ petition, as to
how the manner in which this "net surplus", as worked out by the
DOE, was inherently flawed.
22. Mr. Sibal would also submit that the documents requisitioned
from his client by the email dated 30 th June, 2018 (supra) were
voluminous, and it was impossible to expect his client to furnish the
same in less than 48 hours, especially as the intervening day was
Sunday.
23. Mr. Sibal further submits that the impugned order
fundamentally erred in assuming that the petitioner had submitted, to
the DOE, a proposal, proposing increase of its fee and seeking
approval thereof. He submits that, by virtue of Section 17 of the DSE
Act, his client was not required to take prior approval, before
increasing its fee, but was only required to communicate the statement
of the proposed fee to the DOE, which is what it did. The entire basis
of the impugned order, i.e. that the petitioner had submitted a proposal
for increase of fee, seeking prior approval thereof, was therefore, Mr.
Sibal, submits, misguided, vitiating, in its entirety, the impugned order
itself.
24. Arguing in response to the above submissions of Mr. Sibal, Mr.
Ramesh Singh strongly refutes the allegation that the impugned order
was passed in violation of the principles of natural justice. Referring
to the communication dated 4th July, 2018 (supra), by the petitioner to
the DOE, Mr. Ramesh Singh submits that the petitioner had submitted
its response, on merits, to the case of the DOE against it, and had
clearly asserted that the fee fixed by the petitioner could not be
interdicted or interfered with, in any manner. The said letter, Mr.
Ramesh Singh points out, concluded with the request, to the DOE, to
look into the factual and legal aspects highlighted in the letter and "to
guide the school accordingly". Mr. Ramesh Singh points out that
there was no request, in the said letter, for any grant of personal
hearing and that, inasmuch as the letter was written as a response to
the DOE's notice fixing personal hearing, the DOE was entitled to
treat it as an effective waiver of the right of personal hearing and as a
request to decide the case on merits, which is what it went on to do.
25. Mr. Ramesh Singh also submits that Section 17(3) of the DSE
Act and Rule 180 of the DSE Rules did not set out an adversarial
procedure or require any prior opportunity of personal hearing. It
required the petitioner to file its return and submit its statement of fee,
and required the DOE to examine the same. As such, Mr. Singh
would submit, no violation of the law could be alleged to have taken
place at the hands of the DOE, even if an opportunity of personal
hearing was not extended to the petitioner. Mr. Singh highlights, in
this context, the words "reasonable opportunity of showing cause",
contained in Section 20(1) of the DSE Act and relies, in this context,
on the judgment of this Court in Preet Public Secondary School v.
The Administrator, N.C.T. of Delhi, (1995) 59 DLT 482 (DB). Mr.
Singh also submits that the manner in which the petitioner has worked
out its financial position is completely opposed to settled accounting
principles and asserts that the decision of the DOE, to the effect that
the petitioner had a net surplus of ₹ 11,08,35,824/-, was correct on
facts and in law. Mr. Singh would submit, therefore, that no occasion
arises, for this Court to interfere with the impugned decision of the
DOE.
26. Arguing in rejoinder, Mr. Kamal Gupta, learned counsel
appearing for the petitioner submits that the reliance, by Mr. Singh, on
Section 20 of the DSE Act, is completely misguided, inasmuch as the
impugned order has not been passed under the said provision. Without
prejudice thereto, he relies on the judgment of this Court in Kalka
Public School v. Hon'ble L.G. of Delhi, 2018 (170) DRJ 26, which
holds that an opportunity of hearing is necessary before taking a
decision under Section 20 of the DSE Act. Mr. Kamal Gupta further
submits that, in the present case, the petitioner had not even been
extended the courtesy of a prior show cause notice, before the
impugned order was passed, as the communication, dated 30 th June,
2018 (supra) could not be regarded as a show cause notice. He
highlights the procedure to be followed in cases of schools which were
running on land without the requirement of prior sanction of the DOE
before hiking their fees even as contained in the order, dated 17 th
October, 2017, issued by the DOE and, draws especial attention to the
stipulation, in that regard, to the effect that "in case of schools in
which DOE's Nominee has passed a dissent note and in case of the
schools running on the land allotted by DDA/L&DO/any other
Government Land Owning agencies, NOT having the condition to
seek prior sanction of Director (Education), if a fee hike is proposed
then their statement of fee submitted under section 17(3) of DSEA,
1973 shall compulsorily be analysed by Dy. Director Education
(District)". He further submits that the manner in which the DOE
arrived at a conclusion that the petitioner had a surplus of
₹ 11,835,824/- was completely fallacious, and suffered from glaring
errors.
27. In conclusion, Mr. Kamal Gupta submitted that, in case this
Court was of the view that the matter required to be reconsidered by
the DOE, the impugned order could itself be treated as a show cause
notice, so that time would be saved and the matter expedited. He also
suggested that this Court could adopt the course adopted by the
Division Bench of this Court in Delhi Abhibhavak Mahasangh v.
GNCTD, 2011 SCC OnLine Del 3394, in which a chartered
accountant was appointed to examine the issue and analyse whether
the fee hike, claimed by the schools in that case, was justified.
28. Mr. Ramesh Singh was permitted to advance submissions in
surrejoinder, in which he took me through the scheme of the DSE Act
and submitted, on the basis thereof, that the Act did not contemplate
either issuance of a show cause notice or grant of a prior hearing,
before a decision was taken on the proposal, of any school, to hike its
fee for the coming academic session. He relies, in this context, on
paras 20 and 21 of the well known decision of the Supreme Court in
Modern School (supra). Apropos the decision in Kalka Public
School (supra), Mr. Singh would submit that the judgments relied
upon by the learned Single Judge of this Court, in the said decision,
were distinguished only on the ground that, therein, the impugned
order had already been passed.
29. Mr. Singh finally places reliance on Section 17(3) of the DSE
Act and Rule 175 of the DSE Rules, to support the impugned order.
Analysis and Reasoning
30. Though several arguments were advanced by learned Counsel
appearing on both sides, as reflected hereinabove, regarding the
requirement of obtaining prior approval of the proposed hiking of fees
by the School, as well as the merits of the impugned decision, I do not
think it necessary to enter into the said submissions, or examine their
merit, as, in my view, the impugned Order cannot sustain even on the
ground of violation of the principles of natural justice.
31. The issue of whether an opportunity of personal hearing could
be read into a provision which does not, expressly, provide therefor,
has come in for judicial scrutiny in a number of cases, of which one
may refer, with advantage, to the judgement in Swadeshi Cotton Mills
v. U.O.I., (1981) 1 SCC 664, which contains the following incisive
exploration into the various facets of the principles of natural justice
and fair play and, in particular, the doctrine of audi alteram partem:
"25. Before dealing with the contentions advanced on both
sides, it will be useful to have a general idea of the concept of
"natural justice" and the broad principles governing its
application or exclusion in the construction or administration of
statutes and the exercise of judicial or administrative powers by
an authority or tribunal constituted thereunder.
26. Well then, what is "natural justice"? The phrase is not
capable of a static and precise definition. It cannot be
imprisoned in the straight-jacket of a cast-iron formula.
Historically, "natural justice" has been used in a way "which
implies the existence of moral principles of self-evident and
unarguable truth". [ Paul Jackson : Natural Justice, 2nd Edn., p
1] In course of time, Judges nurtured in the traditions of British
jurisprudence, often invoked it in conjunction with a reference
to "equity and good conscience". Legal experts of earlier
generations did not draw any distinction between "natural
justice" and "natural law". "Natural justice" was considered as
"that part of natural law which relates to the administration of
justice". Rules of natural justice are not embodied rules. Being
means to an end and not an end in themselves, it is not possible
to make an exhaustive catalogue of such rules.
27. But two fundamental maxims of natural justice have now
become deeply and indelibly ingrained in the common
consciousness of mankind, as pre-eminently necessary to
ensure that the law is applied impartially, objectively and
fairly. Described in the form of Latin tags these twin principles
are: (i) audi alteram partemand (ii) nemo judex in re sua. For
the purpose of the question posed above, we are primarily
concerned with the first. This principle was well-recognised
even in the ancient world. Seneca, the philosopher, is said to
have referred in Medea that it is unjust to reach a decision
without a full hearing. In Maneka Gandhi case [(1978) 1 SCC
405 : (1978) 2 SCR 272] , Bhagwati, J. emphasised that audi
alteram partem is a highly effective rule devised by the courts
to ensure that a statutory authority arrives at a just decision
and it is calculated to act as a healthy check on the abuse or
misuse of power. Hence its reach should not be narrowed and
its applicability circumscribed.
28. During the last two decades, the concept of natural
justice has made great strides in the realm of administrative
law. Before the epoch-making decision of the House of Lords
in Ridge v. Baldwin, 1964 AC 140, it was generally thought
that the rules of natural justice apply only to judicial or quasi-
judicial proceedings; and for that purpose, whenever a breach of
the rule of natural justice was alleged, courts in England used to
ascertain whether the impugned action was taken by the
statutory authority or tribunal in the exercise of its
administrative or quasi-judicial power. In India also, this was
the position before the decision, dated February 7, 1967, of this
Court in Dr Bina Pani Dei case [(1974) 2 SCC 121 : 1974 SCC
(Cri) 467 : (1974) 3 SCR 427] ; wherein it was held that even
an administrative order or decision in matters involving civil
consequences, has to be made consistently with the rules of
natural justice. This supposed distinction between quasi-judicial
and administrative decisions, which was perceptibly mitigated
in Dr Bina Pani Dei case [(1974) 2 SCC 121 : 1974 SCC (Cri)
467 : (1974) 3 SCR 427] , was further rubbed out to a vanishing
point in A.K. Kraipak v. Union of India[(1975) 1 SCC 421 :
1975 SCC (L&S) 101 : (1975) 3 SCR 619] , thus: (SCC p. 272,
para 20)
"If the purpose of the rules of natural justice is to prevent
miscarriage of justice one fails to see why those rules
should be made inapplicable to administrative enquiries.
Often times it is not easy to draw the line that demarcates
administrative enquiries from quasi-judicial enquiries....
Arriving at a just decision is the aim of both quasi-
judicial enquiries as well as administrative enquiries. An
unjust decision in an administrative enquiry may have
more far-reaching effect than a decision in a quasi-
judicial enquiry."
29. In A.K. Kraipak case [(1975) 1 SCC 421 : 1975 SCC
(L&S) 101 : (1975) 3 SCR 619] , the court also quoted with
approval the observations of Lord Parker from the Queen's
Bench decision in In re H.K. (Infants), 1965 AC 201; which
were to the effect, that good administration and an honest or
bona fide decision require not merely impartiality or merely
bringing one's mind to bear on the problem, but acting fairly.
Thus irrespective of whether the power conferred on a statutory
body or tribunal is administrative or quasi-judicial, a duty to
act fairly, that is, in consonance with the fundamental
principles of substantive justice is generally implied, because
the presumption is that in a democratic polity wedded to the
rule of law, the State or the legislature does not intend that in
the exercise of their statutory powers its functionaries should
act unfairly or unjustly.
30. In the language of V.R. Krishna Iyer, J. (vide Mohinder
Singh Gill case, (1978) 1 SCC 405: "... subject to certain
necessary limitations natural justice is now a brooding
omnipresence although varying in its play ... Its essence is good
conscience in a given situation; nothing more -- but nothing
less." (SCC p. 434, paras 47 and 48)
31. The rules of natural justice can operate only in areas not
covered by any law validly made. They can supplement the law
but cannot supplant it (per Hedge, J. in A.K. Kraipak, (1969) 2
SCC 262). If a statutory provision either specifically or by
inevitable implication excludes the application of the rules of
natural justice, then the court cannot ignore the mandate of the
legislature. Whether or not the application of the principles of
natural justice in a given case has been excluded, wholly or in
part, in the exercise of statutory power, depends upon the
language and basic scheme of the provision conferring the
power, the nature of the power, the purpose for which it is
conferred and the effect of the exercise of that power.
(see Union of India v. Col. J.N. Sinha, (1970) 2 SCC 458)
32. The maxim audi alteram partem has many facets. Two of
them are: (a) notice of the case to be met; and (b) opportunity
to explain. This rule is universally respected and duty to afford
a fair hearing in Lord Lore-burn's oft-quoted language, is "a
duty lying upon everyone who decides something", in the
exercise of legal power. The rule cannot be sacrificed at the
altar of administrative convenience or celerity; for,
"convenience and justice" -- as Lord Atkin felicitously put it --
"are often not on speaking terms [General Medical
Council v. Spackman, 1943 AC 627, 638] ".
33. The next general aspect to be considered is: Are there
any exceptions to the application of the principles of natural
justice, particularly the audi alteram partem rule? We have
already noticed that the statute conferring the power, can
by express language exclude its application. Such cases do not
present any difficulty. However, difficulties arise when the
statute conferring the power does not expressly exclude this
rule but its exclusion is sought by implication due to the
presence of certain factors: such as, urgency, where the
obligation to give notice and opportunity to be heard would
obstruct the taking of prompt action of a preventive or remedial
nature. It is proposed to dilate a little on this aspect, because in
the instant case before us, exclusion of this rule of fair hearing
is sought by implication from the use of the word "immediate"
in Section 18-AA(1). Audi alteram partem rule may be
disregarded in an emergent situation where immediate action
brooks no delay to prevent some imminent danger or injury or
hazard to paramount public interests. Thus, Section 133 of the
Code of Criminal Procedure, empowers the Magistrates
specified therein to make an ex parte conditional order in
emergent cases, for removal of dangerous public nuisances.
Action under Section 17, Land Acquisition Act, furnishes
another such instance. Similarly, action on grounds of public
safety, public health may justify disregard of the rule of prior
hearing.
34. Be that as it may, the fact remains that there is no
consensus of judicial opinion on whether mere urgency of a
decision is a practical consideration which would uniformly
justify non-observance of even an abridged form of this
principle of natural justice.
In Durayappah v. Fernando [(1967) 2 AC 337] Lord Upjohn
observed that "while urgency may rightly limit such
opportunity timeously, perhaps severely, there can never be a
denial of that opportunity if the principles of natural justice are
applicable.
36. In Mohinder Singh Gill case, (1978) 1 SCC 405, the
appellant and the third respondent were candidates for election
in a Parliamentary Constituency. The appellant alleged that
when at the last hour of counting it appeared that he had all but
won the election, at the instance of the respondent, violence
broke out and the Returning Officer was forced to postpone
declaration of the result. The Returning Officer reported the
happening to the Chief Election Commissioner. An officer of
the Election Commission who was an observer at the counting,
reported about the incidents to the Commission. The appellant
met the Chief Election Commissioner and requested him to
declare the result. Eventually, the Chief Election Commissioner
issued a notification which stated that taking all circumstances
into consideration the Commission was satisfied that the poll
had been vitiated, and therefore in exercise of the powers under
Article 324 of the Constitution, the poll already held was
cancelled and a repoll was being ordered in the constituency.
The appellant contended that before making the impugned
order, the Election Commission had not given him a full and
fair hearing and all that he had was a vacuous meeting where
nothing was disclosed. The Election Commission contended
that a prior hearing had, in fact, been given to the appellant. In
addition, on the question of application of the principles of
natural justice, it was urged by the respondents that the tardy
process of notice and hearing would thwart the conducting of
elections with speed, that unless civil consequences ensued,
hearing was not necessary and that the right accrues to a
candidate only when he is declared elected. This contention,
which had found favour with the High Court, was negatived by
this Court. Delivering the judgment of the Court, V.R. Krishna
Iyer, J., lucidly explained the meaning and scope of the concept
of natural justice and its role in a case where there is a
competition between the necessity of taking speedy action and
the duty to act fairly. It will be useful to extract those
illuminating observations, in extenso: (SCC p. 434, para 48)
"Once we understand the soul of the rule as fair play in
action -- and it is so -- we must hold that it extends to
both the fields. After all, administrative power in a
democratic set-up is not allergic to fairness in action and
discretionary executive justice cannot degenerate into
unilateral injustice. Nor is there ground to be frightened
of delay, inconvenience and expense, if natural justice
gains access. For fairness itself is a flexible, pragmatic
and relative concept, not a rigid, ritualistic or
sophisticated abstraction. It is not a bull in a china shop,
nor a bee in one's bonnet. Its essence is good conscience
in a given situation; nothing more -- but nothing less.
The 'exceptions' to the rules of natural justice are a
misnomer or rather are but a shorthand form of
expressing the idea that in those exclusionary cases
nothing unfair can be inferred by not affording an
opportunity to present or meet a case."
37. After referring to several decisions, including the
observations of Lord Upjohn in Durayappah v. Fernando, the
court explained that mere invocation or existence of urgency
does not exclude the duty of giving a fair hearing to the person
affected: (SCC p. 437, paras 56 & 57)
"It is untenable heresy, in our view, to lock-jaw the
victim or act behind his back by tempting invocation of
urgency, unless the clearest case of public injury flowing
from the least delay is self-evident. Even in such cases a
remedial hearing as soon as urgent action has been taken
is the next best. Our objection is not to circumscription
dictated by circumstances, but to annihilation as an easy
escape from a benignant, albeit inconvenient obligation.
The procedural pre-condition of fair hearing, however
minimal, even post-decisional, has relevance to
administrative and judicial gentlemanliness....
We may not be taken to ... say that situational
modifications to notice and hearing are altogether
impermissible.... The glory of the law is not that
sweeping rules are laid down but that it tailors principles
to practical needs, doctors remedies to suit the patient,
promotes, not freezes, life's processes, if we may mix
metaphors...."
38. The court further emphasised the necessity of striking
pragmatic balance between the competing requirements of
acting urgently and fairly, thus: (SCC p. 439, paras 62-63)
"Should the cardinal principle of 'hearing' as condition
for decision-making be martyred for the cause of
administrative immediacy? We think not. The full
panoply may not be there but a manageable minimum
may make-do.
In Wiseman v. Borneman [(1976) 3 All ER 665]
there was a hint of the competitive claims of hurry and
hearing. Lord Reid said: "Even where the decision has to
be reached by a body acting judicially, there must be a
balance between the need for expedition and the need to
give full opportunity to the defendant to see material
against him."
(emphasis added)
We agree that the elaborate and sophisticated
methodology of a formalised hearing may be injurious to
promptitude so essential in an election under way. Even
so, natural justice is pragmatically flexible and is
amenable to capsulation under the compulsive pressure
of circumstances. To burke it altogether may not be a
stroke of fairness except in very exceptional
circumstances."
The court further pointed out that the competing claims of hurry
and hearing can be reconciled by making situational
modifications in the audi alteram partem rule: (SCC pp. 439 &
440, paras 63 & 66)
"(Lord Denning M.R., in Howard v. Borneman,
summarised the observations of the Law Lords in this
form.) No doctrinaire approach is desirable but the court
must be anxious to salvage the cardinal rule to the extent
permissible in a given case. After all, it is not obligatory
that counsel should be allowed to appear nor is it
compulsory that oral evidence should be adduced.
Indeed, it is not even imperative that written statements
should be called for disclosure of the prominent
circumstances and asking for an immediate explanation
orally or otherwise may, in many cases be sufficient
compliance. It is even conceivable that an urgent meeting
with the concerned parties summoned at an hour's notice,
or in a crisis, even a telephone call, may suffice. If all
that is not possible as in the case of a fleeing person
whose passport has to be impounded lest he should evade
the course of justice or a dangerous nuisance needs
immediate abatement, the action may be taken followed
immediately by a hearing for the purpose of sustaining or
setting aside the action to the extent feasible. It is quite
on the cards that the Election Commission, if pressed by
circumstances may give a short hearing. In any view, it is
not easy to appreciate whether before further steps got
under way he could have afforded an opportunity of
hearing the parties, and revoke the earlier directions....
All that we need emphasize is that the content of natural
justice is a dependent variable, not an easy casualty.
Civil consequences undoubtedly cover infraction
of not merely property or personal rights but of civil
liberties, material deprivations and non-pecuniary
damages. In its comprehensive connotation everything
that affects a citizen in his civil life inflicts a civil
consequence."
(emphasis added)
39. In Maneka Gandhi, [(1978) 1 SCC 405 : (1978) 2 SCR
272], it was laid down that where in an emergent situation,
requiring immediate action, it is not practicable to give prior
notice or opportunity to be heard, the preliminary action should
be soon followed by a full remedial hearing.
40. The High Court of Australia in Commissioner of
Police v. Tanos, (1958) 98 CLR 383 held that some urgency, or
necessity of prompt action does not necessarily exclude natural
justice because a true emergency situation can be properly dealt
with by short measures. In Heatley v. Tasmanian Racing &
Gaming Commission, 14 Aus LR 519, the same High Court
held that without the use of unmistakable language in a statute,
one would not attribute to Parliament an intention to authorise
the commission to order a person not to deal in shares or attend
a stock exchange without observing natural justice. In
circumstances of likely immediate detriment to the public, it
may be appropriate for the commission to issue a warning-off
notice without notice or stated grounds but limited to a
particular meeting, coupled with a notice that the commission
proposed to make a long-term order on stated grounds and to
give an earliest practicable opportunity to the person affected to
appear before the commission and show why the proposed
long-term order be not made.
41. As pointed out in Mohinder Singh Gill v. Chief Election
Commissioner and in Maneka Gandhi v. Union of India such
cases where owing to the compulsion of the fact-situation or the
necessity of taking speedy action, no pre-decisional hearing is
given but the action is followed soon by a full post-decisional
hearing to the person affected, do not, in reality, constitute an
"exception" to the audi alteram partem rule. To call such cases
an "exception" is a misnomer because they do not exclude "fair
play in action", but adapt it to the urgency of the situation by
balancing the competing claims of hurry and hearing.
42. "The necessity for speed", writes Paul Jackson: "may
justify immediate action, it will, however, normally allow for a
hearing at a later stage". The possibility of such a hearing --
and the adequacy of any later remedy should the initial action
prove to have been unjustified -- are considerations to be borne
in mind when deciding whether the need for urgent action
excludes a right to rely on natural justice. Moreover, however,
the need to act swiftly may modify or limit what natural justice
requires, it must not be thought "that because rough, swift or
imperfect justice only is available that there ought to be no
justice": Pratt v. Wanganui Education Board.
43. Prof. de Smith, the renowned author of Judicial
Review (3rd Edn.) has at p. 170, expressed his views on this
aspect of the subject, thus: "Can the absence of a hearing before
a decision is made be adequately compensated for by a hearing
ex post facto? A prior hearing may be better than a subsequent
hearing, but a subsequent hearing is better than no hearing at
all; and in some cases the courts have held that statutory
provision for an administrative appeal or even full judicial
review on the merits are sufficient to negative the existence of
any implied duty to hear before the original decision is made.
The approach may be acceptable where the original decision
does not cause serious detriment to the person affected, or
where there is also a paramount need for prompt action, or
where it is impracticable to afford antecedent hearings."
44. In short, the general principle -- as distinguished from
an absolute rule of uniform application -- seems to be that
where a statute does not, in terms, exclude this rule of prior
hearing but contemplates a post-decisional hearing amounting
to a full review of the original order on merits, then such a
statute would be construed as excluding the audi alteram
partem rule at the pre-decisional stage. Conversely, if the
statute conferring the power is silent with regard to the giving
of a pre-decisional hearing to the person affected and the
administrative decision taken by the authority involves civil
consequences of a grave nature, and no full review or appeal
on merits against that decision is provided, courts will be
extremely reluctant to construe such a statute as excluding the
duty of affording even a minimal hearing shorn of all its formal
trappings and dilatory features at the pre-decisional stage,
unless, viewed pragmatically, it would paralyse the
administrative progress or frustrate the need for utmost
promptitude. In short, this rule of fair play "must not be
jettisoned save in very exceptional circumstances where
compulsive necessity so demands". The court must make every
effort to salvage this cardinal rule to the maximum extent
possible, with situational modifications. But, to recall the words
of Bhagwati, J., the core of it must, however, remain, namely,
that the person affected must have reasonable opportunity of
being heard and the hearing must be a genuine hearing and not
an empty public relations exercise."
(Emphasis supplied)
32. So illuminating, and instructive, indeed, are the above-extracted
passages from Swadeshi Cotton Mills (supra), that any attempt at a
paraphrasing thereof would border on blasphemy. Suffice it to state
that the law, as enunciated in the said decision, continues to hold the
field till date, and continues to guide the Supreme Court, in a plethora
of authorities.
33. Applying the principles so enunciated, I am unable to subscribe
to the submission, of Mr. Ramesh Singh, that there has been no fatal
infraction of the principles of natural justice, in the present case. A re-
look at the sequence of correspondence, between the petitioner and the
DOE, would make this apparent. The fee structure of the petitioner
was submitted, by it, to the DOE, on 30th November, 2017. On 28th
April, 2018, the DOE wrote to the petitioner, seeking certain
documents, which was applied on 5th May, 2018. Further documents
were sought, by the DOE, on 7th May, 2018 and 11th May, 2018.
These, according to the petitioner, were again submitted on 15th May,
2018. On 24th May, 2018, the petitioner wrote, to the DOE, clarifying
that it had never sought any prior approval from the DOE, for the
enhancement of fee, as its case fell under Section 17(3) of the DSE
Act. The School, therefore, has all along been adhering to the stand
that it was merely submitting its statement of proposed fee, for the
next academic session, as was required by the said sub-section, and
was not seeking prior approval. This was reiterated, by the petitioner,
in its further communication, dated 28th May, 2018. On 30th June,
2018, the DOE again wrote to the petitioner, seeking further
documents, which, at a plain glance, would run into several pages,
directing them to appear for personal hearing at less than 48 hours'
notice. On 4th July, 2018, the petitioner wrote back, to the DOE,
pointing out that it had already provided the documents sought in the
earlier emails, dated 28th April, 2018, 7th May, 2018, 11th May, 2018
and 24th May, 2018, of the DOE. In these circumstances, the petitioner
requested the DOE to look into the matter and "guide the school
accordingly". The DOE proceeded, on 9th July, 2018, to pass the
impugned Order.
34. That the petitioner was not, in fact, heard, before the impugned
Order, dated 9th July, 2018, was passed, is an irrefutable fact. Mr.
Ramesh Singh, however, submits that, in the first place, the scheme of
the DSE Act did not require any such prior hearing to be granted to
the petitioner, before the passing of the impugned Order and,
secondly, that the communication, dated 4th July, 2018, effectively
waived the opportunity of personal hearing, as extended by the DOE
on 30th June, 2018, and exhorted the DOE to take a decision, on the
matter, on merits. The two questions that arise for consideration are,
therefore, (i) whether the DSE Act, and the DSE Rules, empowered
the DOE to do away with the requirement of prior hearing, before the
passing of impugned Order dated 9th July, 2018 and (ii) whether the
communication, dated 4th July, 2018, from the petitioner, to the DOE
passing the impugned order without any opportunity of hearing to the
petitioner, amounted to a waiver, by the petitioner, of such
opportunity.
35. Both these issues, in my opinion, would be required to be
answered against the DOE, and in favour of the petitioner.
36. The normal principle to be applied is against jettisoning of the
audi altertam partem requirement. The paragraphs, from Swadeshi
Cotton Mills (supra), extracted hereinabove, highlight the importance
of the said principle, as a cardinal principle of natural justice and fair
play of considerable vintage. It is noticed that the audi alteram
partem principle is devised by the court, to ensure that a just decision
was arrived at, and operates as a healthy check on abuse or misuse of
power and that, therefore, its reach should neither be narrowed nor
circumscribed. The said principle, it is further noted, applies, equally,
to administrative and quasi-judicial acts. Exclusion of the principle is
to be inferred only where such exclusion is to be found, either
specifically or by necessary implication, in the provisions of the
statute. In such cases, no doubt, the Court is proscribed from ignoring
the mandate of the legislature. In examining, however, whether the
statute excludes the audi alteram partem principle, either expressly or
by necessary implication, the court is to be guided by (i) the language
of the statute, (ii) the basic scheme of the provision, (iii) the nature of
the power, (iv) the purpose of conferment of the power and (v) the
effect of exercise of the power. Urgency can be cited as a ground to
avoid compliance with the audi alteram partem rule, in the sense of
grant of a prior opportunity of hearing before taking of the decision,
only where the situation is emergent, and calls for immediate action,
failing which imminent danger, injury or hazard to paramount public
interest can be foreseen. Other circumstances, in which the audi
alteram partem principle, in the form of a prior opportunity of
hearing, may not be mandatory are where considerations of public
safety or public health are involved to the extent that "the clearest case
of public injury flowing from the least delay is self-evident". In all
other circumstances, it would be impermissible to do away with the
requirement of a prior opportunity of hearing, before taking of a
decision, on the grounds of urgency. The concept of "civil
consequences" has also, significantly, been explained, as covering
"infraction of not merely property or personal rights, but of civil
liberties, material deprivation and non-pecuniary damages and, in its
comprehensive connotation, (covering) everything that affects a
citizen in his civil life". Holistically seen, the judgment cautions
courts from excluding the requirement of a pre-decisional hearing,
even if it is to be minimal. It is only when "viewed pragmatically, it
would paralyse the administrative progress or frustrate the need for
utmost promptitude", that the principle can be jettisoned. Every effort
has to be made to salvage the applicability of the audi alteram partem
principle, at the pre-decisional stage.
37. Thus seen, it cannot be regarded, in my opinion, that the
situation was such as justified the passing of the impugned Order,
dated 9th July, 2018, without grant of an opportunity of hearing to the
petitioner. Several issues arose, which required a personal audience in
the matter. The petitioner has, from the very beginning, been
questioning the very requirement of a prior approval, before enhancing
its fees, and has been adhering to its stand that it was never seeking
prior approval, but was only submitting a statement of fees, as
required by Section 17(3) of the DSE Act, before actually enhancing
its fees. The issue of whether, were it not permitted to enhance its
fees, the petitioner would suffer an unbearable loss, or was operating
with a surplus, was also a thorny issue of fact, on which the petitioner
ought to have been heard. A reading of the impugned Order indicates
that the DOE has proceeded to analyse the accounts of the petitioner,
in its own manner, to arrive at the conclusion that the petitioner was
having a net surplus of ₹ 11,08,35,824/-. As against this, the
petitioner's contention was that it was already suffering a deficit, and
that the deficit would be increased, were the petitioner to be saddled
with the burden of having to provide, from its own resources, the
additional pay, to be paid to the teachers under the 7 th CPC. The
consequence of the decision of the DOE was that, interalia, the
petitioner was directed to refund the enhanced fees for the 2017-2018
academic session, or adjust the fees for the subsequent months -
which, in effect, would lead to the same result, i.e., that the petitioner
would have to bear the said amount from its own resources, rather
than recover the same from the parents of the students studying in its
institution. Given the fact that the petitioner was an unaided school,
and is, therefore, largely dependent on the fees charged from its
students, this aspect assumes importance.
38. The above observations are not intended to represent an
exhaustive delineation of all the issues that arise for consideration.
Needless to say, the petitioner would be entitled to place, before the
DOE, all materials justifying the proposed increase of fee for the
2017-2018 academic session, as already recovered by the petitioner.
The petitioner would also be entitled to contend that no prior approval
of the DOE was required, before the fees were so enhanced, and to
make submissions on the applicability, in this context, of the judgment
of the Supreme Court in Modern School (supra), on which the DOE
relies.
39. Inasmuch as the matter is being remanded for reconsideration, I
refrain from entering any observations, even tentative, on any of these
aspects, all of which are left open, to be canvassed by the petitioner
and decided by the DOE. For the purposes of this judgment, suffice it
to state, that the impugned Order dated 9th July, 2018, cannot be said
to have been passed in consonance with the principles of natural
justice. It cannot be said that the letter dated 4th July, 2018, (or even
11th July, 2018, though the said letter was issued after the passing of
the impugned Order) waives the requirement of a personal hearing.
Waiver of the opportunity of personal hearing is not something to be
readily inferred, unless it is expressly so stated. Mr. Sibal is correct in
contending that his client had, in its communication dated 4 th July,
2018, only sought guidance from the DOE, and not invited a decision
behind its back, without an opportunity of hearing. The decision of the
DOE, to treat the said letter as amounting to waiver of the opportunity
of personal hearing, which had been granted by it on 2 nd July, 2018,
borders, I am constrained to say, on perversity.
40. Principles of natural justice are required to be applied in a
pragmatic, rather than a dogmatic, manner. The various
communications, addressed by the DOE to the petitioner, reveal,
clearly, that a mass of information, involving several documents, had
been requisitioned thereby. Even given the sheer volume of the
material sought from the petitioner, the petitioner ought to have been
extended an opportunity of personal hearing, in order to explain the
said material, before the DOE proceeded, on its own, to analyse the
material in the manner it thought best. After all, the records of the
institution could best be explained by the institution itself, irrespective
of whether such explanation meets with the approval of the authority,
taking the ultimate decision, or not. Such an opportunity, in the
present case, has, clearly, not been extended, by the DOE, to the
petitioner, thereby vitiating the impugned Order, dated 9th July, 2018,
even on that score.
41. The suggestion, of learned Senior Counsel appearing for the
petitioner, to refer the matter to a Chartered Accountant, in my view,
does not merit acceptance at this juncture. Mr. Ramesh Singh has
pointed out that the DOE does, where required, take expert opinion
from M/s Ernst & Young, which is a well-known and reputed firm,
involving experts in the field. It is not necessary, therefore, for this
Court to nominate, at this stage, any independent Chartered
Accountant, to examine the matter. Needless to say, however, should
the DOE seek the assistance of any such professional, the petitioner
would be within its rights to question the said decision and, in that
regard, lead expert evidence on its own. Lest the proceedings are
prejudiced, I do not wish to say anything more on this aspect of the
matter.
Conclusion
42. In view of the above discussion, the impugned Order, dated 9 th
July, 2018, is quashed and set aside. The matter stands remanded to
the DoE, for consideration de novo, in the light of the observations
made hereinabove. All questions of fact and law are left open. The
proceedings shall be deemed to recommence from the date when the
notice dated 30th June, 2018, was issued to the petitioner by the DoE.
43. The DoE is directed to take a decision as expeditiously as
possible and, at any rate, within 6 months from the date of
pronouncement of this judgment in court.
44. The writ petition stands allowed to the above extent. There shall
be no order as to costs.
C. HARI SHANKAR, J
FEBRUARY 04, 2019/kr
